Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Elliott v State of NSW (NSW Police Force) [2011] NSWADT 159 Hearing dates: 7 June 2011 Decision date: 30 June 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the applicant's complaint of disability discrimination in the provision of services to proceed Catchwords: LEAVE - complaint of disability discrimination in the provision of services declined as lacking in substance - whether fair and just for complaint to proceed - complaint lacks merit - leave refused Legislation Cited: Anti-Discrimination Act 1977 Anti-Discrimination Act 1998 (Tas) Cases Cited: Anti-Discrimination Commissioner v Acting Ombudsman [2003] TASSC 34; (2003) 11 Tas R 343 Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 Commissioner of Police v Mohamed [2009] NSWCA 432 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Jones and Anor v Ekermawi [2009] NSWCA 388 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 Category: Interlocutory applications Parties: Wayne Elliott (Applicant) State of NSW (NSW Police Force) (Respondent) Representation: Mr W Elliott (Applicant - In person) Bartier Perry (Respondent) File Number(s): 111036 REasons for decision Introduction 1EQUAL OPPORTUNITY DIVISION (N HENNESSY, LCM (DEPUTY PRESIDENT)): Mr Elliott complains that the NSW Police Force (the Police) have discriminated against him on the ground of his mental illness - dysthymia, post traumatic stress disorder and depression. Mr Elliott has been a tenant of Housing NSW since April 2008 and says that despite communicating with Police on many occasions about the conduct of his neighbours, they did not respond appropriately. 2The President of the Anti-Discrimination Board declined Mr Elliott's complaint as lacking in substance. Mr Elliott needs to obtain the Tribunal's permission before his complaint can proceed: Anti-Discrimination Act 1977 ( AD Act ), s 96. The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the complaint lacks substance. Alleged conduct 3In Mr Elliott's words, within hours of moving to his unit, Mr and Ms Quin, the occupants of the unit directly below: . . . stormed through their unit, slamming doors like gunshots. They smashed through the wind chimes, bamboo outside the back door, and metal outside the front door. These acts were repeated over and over and over until dawn, when Mr Quin left for his part-time work. This shocking, deliberate, malignant introduction premiered a relentless campaign, instigated by Mr and Mrs Quin, who recruited all other tenants, to destroy a mentally ill stranger alone in his new home. 4In his complaint to the Anti-Discrimination Board, Mr Elliott details the nature and extent of the noise and other harassment he says he endured from Mr and Mrs Quin. (See pages 6, 7 and 8 of the President's Report.) 5The conduct about which Mr Elliott complains is set out in a letter he wrote to the President of the Anti-Discrimination Board dated 1 February 2011. (See page 69 of President's Report). In summary, the alleged conduct is that Police: (1) refused to arrest Mr Quin for making malicious allegations; (2) failed to act in relation to a sign displayed in the building denigrating Mr Elliott; (3) failed to prevent Mr Quin from harassing him; (4) did not believe him when he told them about the conduct of Mr Quin and his wife; (5) assumed that his distress and desperation was a manifestation of his mental illness; (6) told him to, "Shut up and go to bed" at 2 am on 20 November 2008; and (7) threatened to arrest him in December 2008 after complaining about the Quins' wall thumping behaviour. 6Mr Elliott said that following the Police's threat to arrest him he did not call the Police again even though Mr Quin continued with the behaviour. Mr Elliott kept a journal of interactions with Police from September 2008 to March 2009. 7Mr Quin left the unit in April 2009, but another neighbour, Mr Battat, continued "stomping around his flat slamming doors and throwing things on the floor" until he relocated to other accommodation. Since Mr Quin and Mr Battat have left Mr Elliott says that there is finally some peace. Period of the complaint 8Mr Elliott complained to the President of the Anti-Discrimination Board on 25 October 2010. In his report referring the complaint to the Tribunal, the President identifies April 2008 to August 2010 as the period of the complaint. The Board accepted the whole complaint for investigation including the allegations that were said to have taken place more than 12 months before Mr Elliott lodged the complaint. (See page 64 of the President's Report.) 9In a letter to the Board dated 1 February 2011 (page 68 of the President's Report) Mr Elliott refers to the journal that he kept from September 2008 to March 2009 and requests that the Board "use this journal as a source" for his complaint against the Police. In their written submissions to the Tribunal, the Police interpret that request as manifesting an intention by Mr Elliott to "confine the detail of his complaint" to matters involving the Police prior to April 2009 when the Quin's moved out. 10When listing the conduct about which he was complaining, Mr Elliott referred almost exclusively to conduct involving the Quins. In his complaint to the Board, the only mention of Mr Battat is that Police were "thoroughly manipulated" by both him and Mr Quin. 11I do not interpret Mr Elliott's letter of 1 February 2011 to mean that he is abandoning or withdrawing any allegations he made about the conduct of the Police after April 2009. However, I note that the only information from Mr Elliott relating to conduct after April 2009 is his report of an event on 17 June 2010. (See page 61 of the President's Report.) 12The Police submitted that because all the complaints involving Mr Quin occurred more than 12 months before Mr Elliott complained to the Board, it is not fair or just for his complaint to proceed. 13I do not agree with that proposition. The President of the Anti-Discrimination Board accepted Mr Elliott's complaint even though the majority of the events about which he complained took place more than 12 months before he lodged the complaint. The Tribunal does not have power to confine the complaint to the most recent allegations. Nor is it 'fair' or 'just' in the circumstances of this case to refuse leave on the basis some of the allegations were more than 12 months old when they were made. Merits of the complaint 14In order to substantiate his complaint, Mr Elliott would have to prove that the Police have breached s 49M of the AD Act . That provision makes discrimination on the ground of disability unlawful in relation to the provision of services. Discrimination is defined in s 49B. The first part of the definition refers to 'direct' discrimination. The second part refers to 'indirect' discrimination. My understanding is that Mr Elliott is complaining of 'direct' discrimination. 15Mr Elliott alleges that Police breached s 49M of the AD Act in relation to the terms on which they provided him with a service. The matters which Mr Elliott would have to prove to substantiate a complaint of direct disability discrimination in the provision of services are that: (1) he has a 'disability' as defined in the AD Act ; (2) Police have provided him with a service on unfavourable terms by failing to respond to his complaints appropriately; (3) in providing services on unfavourable terms, Police treated him less favourably than it treated or would have treated a person who did not have his disability, in the same or similar circumstances; (differential treatment) and (4) at least one of the reasons for that treatment was Mr Elliott's disability even if that reason was not the dominant or a substantial reason for the treatment: AD Act , s 4A (causation). Disability 16Mr Elliott says he suffers from dysthymia, post traumatic stress disorder and depression. If he can prove that that is the case, he is likely to be able to establish that he has a disability within the meaning of that term in the AD Act . Services and conduct 17Mr Paul, representing the Police, does not agree that the Police were providing Mr Elliott with a "service" within the meaning of that term in the AD Act . The issue of the circumstances in which the Police provide services to members of the public was considered by the Court of Appeal in Commissioner of Police v Mohamed [2009] NSWCA 432. In that case, because the facts had not been ascertained with any clarity, the Court of Appeal (Basten JA, Spigelman CJ) made the general statement at [49] that: Conduct of police officers with respect to a request for assistance in relation to possible criminal activity where protection of persons or property may be involved can involve the refusal or provision of services to the purpose of section 19 of the Anti-Discrimination Act. (Emphasis added.) 18Section 19 makes race discrimination in the provision of services unlawful and is in similar terms to s 49M. However, as well as requesting assistance, part of Mr Elliott's complaint is that the Police refused to arrest Mr Quin for making malicious allegations and failed to act in relation to a sign denigrating Mr Elliott which had been displayed in the building. 19The Supreme Court of Tasmania has held that "services" do not include a decision as to whether or not to charge a person with an offence. In Anti-Discrimination Commissioner v Acting Ombudsman [2003] TASSC 34; (2003) 11 Tas R 343, the Supreme Court decided in the context of the Anti-Discrimination Act 1998 (Tas) that when the Director of Public Prosecutions conducts criminal prosecutions, he or she is not providing services to the victims. Given this decision, it is likely if this matter went to hearing, that the Tribunal would decide that when the Police are determining whether or not to charge a person with an offence, they are not providing services to the victims. If that is correct, then Mr Elliott's complaints that the Police refused to arrest Mr Quin for making malicious allegations and failed to act in relation to a sign displayed in the building, would not be substantiated. 20Similarly, failing to achieve a particular outcome, such as stopping the Quins from making undue noise, is unlikely to constitute a breach of s 49M. Section 49M (and s 49B) are confined to the way in which an individual is treated. 21I have assumed, for the purposes of these proceedings, that a Tribunal hearing this case would decide that Mr Elliott's remaining allegations, if proved, constitute the provision of a service to Mr Elliott on unfavourable terms. Those allegations include that the Police did not believe him, that they assumed that his distress was a manifestation of his mental illness and that they threatened to arrest him. Differential treatment 22The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Elliott must be compared with the treatment that would have been afforded to a person without Mr Elliott's disability in the same or similar circumstances. Mr Elliott did not point to another person without a disability who had been treated differently after making complaints of excessive noise. 23In the absence of an actual person whose treatment could be compared with the treatment given to Mr Elliott, a decision maker would have to rely on a hypothetical person in a comparable situation. In those circumstances, the differential treatment and causation enquiries merge because the Tribunal could only reach the conclusion that the respondent treated the applicant less favourably than a hypothetical person without a disability would have been treated by determining that disability was a reason for that different treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133. Causation 24At least one of the reasons for being treated in the way he was treated must be Mr Elliott's disability, that is, his mental illness. Because the reason for the conduct is almost always within the respondent's knowledge, it is often difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation remains under the AD Act that the legal and evidential burden remains on the applicant to prove his or her case. Significantly, Mr Elliott has the legal and evidential burden of proving that his disability was at least one of the reasons for the conduct about which he complains. 25While Mr Elliott is extremely dissatisfied with the Police's response to his complaint, there is nothing in the material he has presented to suggest that the Police would have responded differently to a tenant without a mental illness or that Mr Elliott's mental illness was a reason for the way in which they responded. It is not enough for Mr Elliott to prove that he has a mental illness and that he was treated unfavourably. He must be able to establish a link between his illness and the treatment he received. During the hearing Mr Elliott volunteered that if it was not his disability that prompted the Police's conduct, then perhaps it was because he was a tenant of Housing NSW. 26In the absence of any direct evidence of a link between the treatment he was afforded and his mental illness, or of evidence which would allow a link to be inferred, the complaint lacks substance and it would be unfair and unjust for it to proceed. Order Leave is refused for the applicant's complaint of disability discrimination in the provision of services to proceed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar/Associate DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2011